New
Mexico Register / Volume XXXII, Issue 16 /August 24, 2021
This is an amendment to 8.139.400 NMAC, Section 11 and 12 to be effective 9/1/2021.
8.139.400.11 SPECIAL MEMBERS:
[A. Students:
(1) Eligibility: An individual who is enrolled at least
half-time in an institution of higher education will be ineligible to
participate in SNAP unless the individual qualifies for one of the exemptions
contained in Paragraph (3) of Subsection A of 8.139.400.11 NMAC. Half-time enrollment status is determined by
the definition of the institution in which the individual is enrolled or
attending.
(2) Enrollment:
(a) Students
enrolled in an institution of higher education less than half time are not considered students for purposes of
SNAP eligibility, and do not have to meet an exemption at Paragraph (3) of
Subsection A of 8.139.400.11 NMAC to be eligible for SNAP.
(b) Students who are
enrolled at least half-time in an institution of higher education in a program
that normally requires a high school diploma or equivalency certificate for
enrollment in a “regular curriculum,” are students and have to meet an
exemption at Paragraph (3) of Subsection A of 8.139.400.11 NMAC to be eligible
for SNAP. The following programs are not
in the “regular curriculum,” and if enrolled in one of these programs, the
student would not be considered a student for purposes of SNAP eligibility:
(i) Career
or technical certificate programs.
Career and technical certificate programs are programs which offer a
sequence of courses that provide individuals with coherent and rigorous content
aligned with challenging academic standards and relevant technical knowledge
and skills needed to prepare for further education and careers in current or
emerging professions; provide technical skill proficiency, an industry-
recognized credential, a certificate, or an associate degree; and may include
prerequisite courses that meet the requirements of this subparagraph; and include
competency-based applied learning that contributes to the academic knowledge,
higher-order reasoning and problem-solving skills, work attitudes, general
employability skills, technical skills, and occupation- specific skills, and
knowledge of all aspects of an industry, including entrepreneurship, of an
individual.
(ii) English
as a second language;
(iii) adult
basic education;
(iv) literacy;
or
(v) community
education courses
(c) Students who are
enrolled at least half-time in a “regular curriculum,” at a college or
university that offers degree programs regardless of whether a high school
diploma is required are considered students for purposes of SNAP eligibility,
and have to meet an exemption found at Paragraph (3) of Subsection A of
8.139.400.11 NMAC to be eligible for SNAP.
(d) The enrollment status of a
student shall begin on the first day of the school term. Such enrollment shall be deemed to continue
through normal periods of class attendance, vacation and semester breaks. Enrollment status shall terminate when the
student graduates, is expelled, does not re-enroll or is suspended for a period
in excess of 30 calendar days
(e) Students who
reside on campus as defined at 34 CFR 668.46(a) and who have opted to or are
required to purchase a meal plan which provides fifty percent or more of their
meals are ineligible for SNAP in accordance with 7 CFR 273.1(b)(7)(vi).
(3) Student
exemptions: To be eligible, a
student must meet at least one of the following exemptions:
(a) Age:
Be age 17 or younger or age 50 or older.
(b) Physical or mental unfitness: For exemption purposes, physical or mental
unfitness per Paragraph (3) of Subsection A of 8.139.400.11 NMAC and 7 CFR
273.5(b)(2) is defined as follows: An
individual who has a mental or physical illness or disability, temporary or
permanent, which reduces their ability to financially support themselves. Unfitness can be obvious to the department
and documented in the case file; or not obvious to the department, but is
documented by a physician, physician's assistant, nurse, nurse practitioner, a
licensed or certified psychiatrist or a licensed or certified psychologist, or
social worker as being unfit to work; the claim of physical or mental unfitness
must be substantiated by written documentation identifying the physical or
mental condition and certifying that the person is unfit for employment.
(i) If
an individual claims to be physically or mentally unfit for purposes of the
student exemption, and the unfitness is not evident to ISD, verification may be
required.
(ii) Appropriate
verification may consist of receipt of temporary or permanent disability
benefits issued by government or private sources, or of a statement from a
physician or licensed or certified psychologist.
(c) Education/training program: Assigned to or placed in an institution of
higher education through or in compliance with the requirements of:
(i) a
program under the Job Training Partnership Act of 1974 (JTPA);
(ii) an
employment and training program under 7 CFR 273.7;
(iii) a
program under Section 236 of the Trade Act of 1974 [19 U.S.C. 2296]; or
(iv) an
employment and training program for low-income households that is operated by a
state or local government where one or more of the components of such program
is at least the equivalent to an acceptable SNAP employment and training
program component.
(d) Employment: Employed a minimum of 20 hours per week and
paid for such employment, or, if self-employed, working a minimum of 20 hours
per week, and receiving weekly earnings at least equal to the federal minimum
wage multiplied by 20 hours. Students
whose employment hours fluctuate week to week will be considered to have met
the minimum work hour requirement, as long as they maintain an average of 20
hours per week or 80 hours per month.
(e) Work study: Be participating in a state or federally
financed work study program during the regular school year.
(i) The
student must be approved for work study at the time of application for SNAP
benefits, the work study must be approved for the school term, and the student
must anticipate actually working during that time.
(ii) The
exemption will begin with the month in which the school term begins or the
month work study is approved, whichever is later.
(iii) Once
begun, the exemption will continue until the end of the month in which the
school term ends, or it becomes known that the student has refused an
assignment.
(iv) The
exemption will not continue between terms when there is a break of a full month
or longer, unless the student is participating in work study during the break.
(f) Children: Responsible for a dependent household member
who:
(i) is
under age 6; or
(ii) has
reached the age of 6 but is under age 12 when ISD has determined that adequate
child care is not available to enable the student to attend class and comply
with the 20-hour work requirement in (d) or the work study requirement in (e)
above.
(g) Single parents: Enrolled in an institution of higher
education on a full-time basis (as determined by the institution) and be
responsible for the care of a dependent child under age 12.
(i) This
provision applies when only one natural, adoptive or stepparent (single, widow/
widower, separated, divorced) is in the same SNAP household as the child.
(ii) If
there is no natural, adoptive or stepparent in the same SNAP household as the
child, another full-time student in the same SNAP household as the child may
qualify for eligible student status under this provision if he/she has parental
control over the child and is not living with his/her spouse.
(h) Title IV-A: Receiving Title IV-A cash assistance.
(i) Work
incentive program: Participation in
the job opportunities and basic skills program under Title IV of the Social
Security Act or its successor programs.
(j) On-the-job training: Be participating in an on-the-job training
program. An individual is considered to
be participating in an on-the-job training program only during the period of
time the individual is being trained by the employer.]
A. Students:
(1) Eligibility: An individual who is enrolled at least
half-time in an institution of higher education will be ineligible to
participate in SNAP unless the individual qualifies for one of the exemptions
contained in Paragraph (3) of Subsection A of 8.139.400.11 NMAC. Half-time enrollment status is determined by
the definition of the institution in which the individual is enrolled or
attending.
(2) Reside on Campus: Students who reside
on campus as defined at 34 CFR 668.46(a) and who have opted to or are required
to purchase a meal plan which provides fifty percent or more of their meals are
ineligible for SNAP in accordance with 7 CFR 273.1(b)(7)(vi).
(3) Enrollment: An individual is considered
to be enrolled in an institution of higher education if the individual:
(a) is
enrolled in a business, technical, trade, or vocational school that normally
requires a high school diploma or equivalency certificate for enrollment in the
curriculum; or
(b) is
enrolled in a regular curriculum at a college or university that offers degree
programs regardless of whether a high school diploma is required.
(4) Student Exemptions: To be eligible for SNAP, a student as defined
in with Subparagraphs (a)
and (b) of Paragraph (4) of Subsection A of 8.139.400.11
NMAC must meet at least one of the following criteria.
(a) Be
age 17 or younger or age 50 or older;
(b) Be
physically or mentally unfit: For exemption purposes, physical or mental
unfitness per Paragraph (3) of Subsection A of 8.139.400.11 NMAC and 7 CFR
273.5(b)(2) is defined as follows: An
individual who has a mental or physical illness or disability, temporary or
permanent, which reduces their ability to financially support themselves. Unfitness can be obvious to the department
and documented in the case file; or not obvious to the department, but is
documented by a physician, physician's assistant, nurse, nurse practitioner, a
licensed or certified psychiatrist or a licensed or certified psychologist, or
social worker as being unfit to work; the claim of physical or mental unfitness
must be substantiated by written documentation identifying the physical or
mental condition and certifying that the person is unfit for employment.
(i) if
an individual claims to be physically or mentally unfit for purposes of the student
exemption, and the unfitness is not evident to ISD, verification may be
required;
(ii) appropriate
verification may consist of receipt of temporary or permanent disability
benefits issued by government or private sources, or of a statement from a
physician or licensed or certified psychologist.
(c) be
receiving Temporary Assistance for Needy Families under Title IV of the Social
Security Act;
(d) be enrolled as a
result of participation in the Job Opportunities and Basic Skills program under
Title IV of the Social Security Act or its successor program;
(e) be employed for
a minimum of 20 hours per week and be paid for such employment or, if
self-employed, be employed for a minimum of 20 hours per week and receiving
weekly earnings at least equal to the federal minimum wage multiplied by 20
hours. For students whose employment
hours fluctuate week to week will be considered to have met the minimum work
hour requirement, as long as they maintain an average of 20 hours per week or
80 hours per month. Compliance with this
requirement can be determined by calculating whether the student worked an average
of 20 hours per week over the period of a month, quarter, trimester or
semester.
(f) be
participating in a state or federally financed work study program during the
regular school year.
(i) To qualify
under this provision, the student must be approved for work study at the time
of application for SNAP benefits, the work study must be approved for the
school term, and the student must anticipate actually working during that time.
The exemption shall begin with the month
in which the school term begins or the month work study is approved, whichever
is later. Once begun, the exemption
shall continue until the end of the month in which the school term ends, or it
becomes known that the student has refused an assignment.
(ii) The exemption
shall not continue between terms when there is a break of a full month or
longer unless the student is participating in work study during the break.
(g) be participating
in an on-the-job training program. A
person is considered to be participating in an on-the-job training program only
during the period of time the person is being trained by the employer;
(h) be responsible
for the care of a dependent household member under the age of six;
(i) be responsible
for the care of a dependent household member who has reached the age of six but is under age 12 when ISD has determined
that adequate child care is not available to enable the student to attend class
and comply with the work requirements of Subparagraphs (e) and (f) of Paragraph
(3) Subsection A of
8.139.400.11 NMAC;
(j) be a single
parent enrolled in an institution of higher education on a full-time basis (as
determined by the institution) and be responsible for the care of a dependent
child under age 12;
(i) This provision
applies in those situations where only one natural, adoptive or stepparent
(regardless of marital status) is in the same SNAP household as the child.
(ii) If
no natural, adoptive or stepparent is in the same SNAP household as the child,
another full-time student in the same SNAP household as the child may qualify
for eligible student status under this provision if he or she has parental
control over the child and is not living with his or her spouse.
(k) be
assigned to or placed in an institution of higher education through or in
compliance with the requirements of one of the programs identified in
items (i), (iv) of Subparagraph (k)
of Paragraph (3) of Subsection A of 8.139.400.11 NMAC. Self-initiated
placements during the period of time the person is enrolled in one of these
employment and training programs shall be considered to be in compliance with
the requirements of the employment and training program in which the person is
enrolled provided that the program has a component for enrollment in an
institution of higher education and that program accepts the placement. Persons who voluntarily participate in one of
these employment and training programs and are placed in an institution of
higher education through or in compliance with the requirements of the program
shall also qualify for the exemption. The
programs are:
(i) a program under
the Job Training Partnership Act of 1974 (29 U.S.C. 1501, et seq.);
(ii) an
employment and training program in accordance with 7 CFR 273.7, subject to the
condition that the course or program of study, as determined by the state
agency:
(iii) is
part of a program of career and technical education as defined in section 3 of
the Carl D. Perkins Career and Technical Education Act of 2006 (20 U.S.C. 2302)
designed to be completed in not more than four years at an institution of
higher education as defined in section 102 of the Higher Education Act of 1965
(20 U.S.C. 2296); or
(iv) is
limited to remedial courses, basic adult education, literacy, or English as a
second language;
(v) A program under
section 236 of the Trade Act of 1974 (19 U.S.C. 2296); or
(vi) An employment
and training program for low-income households that is operated by a sate or
local government where one or more of the components of such program is at
least equivalent to an acceptable SNAP employment and training program
component in accordance with 7 CFR 273.7(e)(1). Using the criteria in 7 CFR 273.7(e)(1), a
determination be made as to whether or not the programs qualify;
(l) the enrollment
status of a student shall begin on the first day of the school term of the
institution of higher education. Such
enrollment shall be deemed to continue through normal periods of class
attendance, vacation and recess, unless the student graduates, is suspended or
expelled, drops out, or does not intend to register for the next normal school
term (excluding summer school);
(m) the income and
resources of an ineligible student shall be handled in accordance with the
requirements in Subsection D of 8.139.520.10 NMAC.
B. Strikers:
Households with members on strike are ineligible to participate in the
SNAP, unless the household was eligible for benefits the day before the strike
began and is otherwise eligible at the time of application. A striker is anyone involved in a strike or
concerted stoppage of work by employees, including a stoppage because of the
expiration of a collective bargaining agreement, and any concerted slowdown or
other concerted interruption of operations by employees. Employees participating in a sympathy strike
will be considered strikers. The household will not receive an increased SNAP
benefit amount as a result of the decrease in income of the striking member(s)
of the household.
(1) Nonstrikers: The following individuals are not considered
strikers and are eligible for program participation:
(a) any
employee affected by a lockout;
(b) an
individual who goes on strike who is exempt from work registration (Subsection
B of 8.139.410.12 NMAC) the day before the strike, except those who were exempt
because of employment;
(c) employees
whose workplace is closed by an employer in order to resist demands of
employees (i.e., a lockout);
(d) employees
unable to work as a result of other striking employees (e.g., truck drivers who
are not working because striking newspaper pressmen prevent newspapers from
being printed;
(e) employees
who are not part of the bargaining unit on strike but who do not want to cross
a picket line for fear of personal injury or death;
(f) employees
who are fired or laid off, or who are permanently replaced or officially
resign; and
(g) employees
who will not be permitted to return to their old jobs but are offered different
ones.
(2) Striker eligibility:
(a) Striker
eligibility is determined by considering the day before the strike as the day
of application and assuming the strike did not occur.
(b) Eligibility
at the time of application is determined by comparing the striking member's
income before the strike to the striker's current income and adding the higher
of the two to the current income of the nonstriking household members during
the month of application.
(c) To
determine benefits (and eligibility for households subject to the net income
eligibility standard), deductions will be calculated for the month of
application as for any other household.
Whether the striker's prestrike earnings are used or the current income
is used, the earnings deduction is allowed if appropriate.
(d) Strikers
whose households are eligible to participate in the SNAP will be required to
register for work unless otherwise exempt.
C. Boarders: Boarders
are defined as individuals or groups
of individuals residing with others and paying reasonable compensation to those
others for lodging and meals. An
individual furnished both lodging and meals by a household, but paying less
than reasonable compensation to the household for such services, will be
considered a household member. Foster
care children placed in the home of relatives or other individuals or families
will be considered boarders. Foster care
payments made to the household will not be counted as income, unless the household
chooses to include the foster child.
Payment to a household for lodging and meals will be treated as
self-employment income to the household.
(1) Reasonable compensation: To determine if an individual is paying
reasonable compensation for meals and lodging in making a determination of
boarder status, only the amount paid for meals will be used, provided that the
amount paid for meals can be distinguished from the amount paid for
lodging. A reasonable monthly payment
will be either of the following:
(a) A
boarder whose board arrangement is for more than two meals a day must pay an
amount which equals or exceeds the maximum SNAP benefit amount for the
appropriate size of the boarder household.
(b) A
boarder whose board arrangement is for two meals or less per day must pay an
amount which equals or exceeds two-thirds of the maximum SNAP benefit amount
for the appropriate size of the boarder household.
(2) Included boarders: A household which provides boarding services
may request that the boarder be included as a member of the household. Boarders are not eligible to participate in
the SNAP separately from the household providing the board. All the income and resources of included
boarders will be counted in determining the eligibility and SNAP benefit amount
of the household.
(3) Excluded boarders: The income and resources of boarders who are
not included as household members will not be considered available to the
household.
[02/01/1995, 10/01/1995, 02/15/1996, 05/15/1997, 07/01/1997/ 06/01/1999; 8.139.400.11 NMAC - Rn, 8 NMAC 3.FSP.403, 05/15/2001; A, 07/15/2013; A, 09/01/2017; A, 06/01/2018; A, 09/01/2021]
8.139.400.12 INELIGIBLE HOUSEHOLD MEMBERS: The following individuals shall be included as household members for the purpose of defining a household, but shall not be included as eligible members when determining the household's size, comparing the household's monthly income with the income eligibility standard, or assigning a benefit amount by household size.
A. Excluded household members:
(1) Ineligible aliens: Individuals who do not meet citizenship or eligible alien status requirements, or eligible sponsored alien requirements. The income and resources of such individuals shall be counted in determining the household's eligibility and benefit amount in accordance with the requirements in Subsection C of 8.139.520.10 NMAC.
(2) Ineligible students: Individuals enrolled in an institution of higher education who are ineligible because they do not meet the student eligibility requirements in Subsection A of 8.139.400.11 NMAC. Ineligible students are considered as non-household members in determining the household's eligibility and benefit amount. Income and resources are considered in accordance with the requirements in Subsection D of 8.139.520.10 NMAC.
B. Disqualified household members:
(1) SSN disqualified: Individuals who are disqualified for refusal or failure to provide a social security number.
(2) Work noncompliance: Individuals who have been disqualified for failure or refusal to comply with work requirements.
(3) IPV: Individuals disqualified for an intentional program violation.
C. Disqualification for fleeing felons and probation/parole violators: No member of an otherwise eligible household shall be eligible to participate in the FSP as a member of the household during any period in which the individual is:
(1) fleeing to avoid prosecution, or custody or confinement after conviction, under the law of the place from which the individual is fleeing, for a crime or attempt to commit a crime, that is a felony, or in New Jersey a high misdemeanor, under the law of the place from which the individual is fleeing; or
(2) violating a condition of probation or parole imposed under a federal or state law.
(3) Treatment of income and resources: The income and resources of an individual described in Paragraphs (1) and (2) of Subsection C of 8.139.400.12 NMAC shall be attributed in their entirety to the household while the individual is in the home.
D. Disqualification
for certain convicted felon: The
disqualification contained in Subsection D of 8.139.400 NMAC shall not apply to
a conviction if the conviction is for conduct occurring on or before February
7, 2014. An individual shall not be
eligible for SNAP benefits if the individual is convicted as an adult of:
(1) aggravated sexual abuse
under section 2241 of title 18, United States Code;
(2) murder under section 1111
of title 18, United States Code;
(3) an offense under chapter
110 of title 18, United States Code;
(4) a federal or state offense involving
sexual assault, as defined in section 40002(a) of the Violence Against Women
Act of 1994 (42 U.S.C. 13925(a)); or
(5) an offense under state law determined
by the attorney general to be substantially similar to an offense described in Paragraph
(1), (2), or (3) of Subsection D of 8.139.400.12 NMAC; and
(6) The individual is not in compliance with
the terms of the sentence of the individual or the restrictions under
Subsection C of 8.139.400.12 NMAC.
[02/01/1995, 10/01/1995, 05/15/1997; 8.139.400.12 NMAC - Rn, 8 NMAC 3.FSP.404, 05/15/2001; A, 02/14/2002; A, 5/15/2002; A, 09/01/2021]